1. According to Article 10(3)1 of the former Punishment of Tax Evaders Act (amended by Act No. 16108, Dec. 31, 2018; hereinafter the same), a person who issues or is issued a tax invoice under the Value-Added Tax Act without being supplied goods or services shall be punished by imprisonment for not more than three years or by a fine not exceeding three times the amount calculated by applying the value-added tax rate to the value of supply stated in the said tax invoice. However, Article 8-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”) provides that a person who commits a crime under Article 10(3) of the former Punishment of Tax Evaders Act for profit-making purposes shall be punished by imprisonment for a limited term of not less than three years where the total sum of supply values entered in the tax invoice exceeds five billion won, and a person who commits a crime shall be punished by imprisonment for a limited term of not less than one year where the total sum of supply values entered in the tax invoice is below three billion won but less than five billion won, and the grounds for fair imposition of water quality and fine.

On the other hand, the Value-Added Tax Act stipulates a taxpayer of value-added tax as a "business operator", requires a business operator to register his/her business at each place of business, and adopts the so-called tax credit for the amount of tax payable (Articles 3, 8(1), and 37). Therefore, the tax invoice is a value-added tax data for all the issuing business operators and the issuing business operators.

In full view of the language and legislative purport of Article 8-2 of the Specific Crimes Aggravated Punishment Act, the provisions of the Value-Added Tax Act, and the circumstances where both the person who has issued a tax invoice and the person who has been issued a tax invoice are punished under Article 10(3)1 of the former Punishment of Tax Evaders Act, where the Defendant issued a false tax invoice as an entrepreneur supplying goods or services, while another entrepreneur actually supplied goods or services without actually being supplied with such goods or services, it is reasonable to add up the value of supply and the value of supply as an entrepreneur issued by the business proprietor when calculating the sum of the value of supply, etc. under each subparagraph of Article 8-2(1) and (2) of

2. On the grounds stated in its reasoning, the lower court found the Defendant not guilty of the portion of the receipt (the total supply value of KRW 5,754,637,983) corresponding to the part of the instant facts charged, on the ground that the portion of the receipt (the total supply value of KRW 5,754,637,983) corresponding to the part on which a false tax invoice was issued among the companies substantially controlled and operated by the Defendant (the original co-defendant 2, the original co-defendant 3, and the lower co-defendant 3, etc.), and found the Defendant guilty of only the portion of the violation of the Specific Crimes Aggravated Punishment Act (the issuance of false tax invoices), on the other hand, the scope of the punishment of fines imposed on the Defendant, as well as the amount excluded from the above part, was based only on the supply value.

However, according to the legal principles as seen earlier, when calculating the total amount of supply value, etc. under each subparagraph of Article 8-2(1) and (2) of the Specific Crimes Aggravated Punishment Act, the supply value of false tax invoices issued or issued by the defendant shall be added as it is. The supply value of the false tax invoices issued or issued by the defendant shall not be excluded from the total amount of supply value, etc. Nevertheless, the lower court determined otherwise. In so doing, the lower court erred by misapprehending the legal doctrine on the interpretation and calculation of the total amount of supply value, etc. under Article 8-2(1) and (2) of the Specific Crimes Aggravated Punishment Act, thereby affecting the conclusion of the judgment. The prosecutor’

3. Conclusion

Therefore, among the judgment below, the part of the judgment of the court below against the defendant should be reversed. Since the part of the judgment below against the defendant and the remaining part of the judgment against the defendant guilty should be reversed in relation to a single crime, the part of the judgment below against the defendant shall be reversed and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Kim Jae-hyung (Presiding Justice)